F.M.G.W. v. D.S.W.

402 S.W.3d 329, 2013 WL 2250710, 2013 Tex. App. LEXIS 6297
CourtCourt of Appeals of Texas
DecidedMay 22, 2013
DocketNo. 08-11-00365-CV
StatusPublished
Cited by13 cases

This text of 402 S.W.3d 329 (F.M.G.W. v. D.S.W.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
F.M.G.W. v. D.S.W., 402 S.W.3d 329, 2013 WL 2250710, 2013 Tex. App. LEXIS 6297 (Tex. Ct. App. 2013).

Opinion

OPINION

GUADALUPE RIVERA, Justice.

Appellant, F.M.G.W., appeals from the portion of a divorce judgment, decreed on November 29, 2010, and signed on May 5, 2011, which divides the community estate. The divorce decree, in part, awarded Appellant a 2005 Lexus motor vehicle, and ordered D.S.W., Appellee, to pay the balance due on the promissory note given as part of the purchase price of the Lexus. In her appeal, Appellant seeks, in part, a new trial and reversal of the portion of the judgment dividing the community estate but does not seek reversal of those portions of the judgment granting the divorce or relating to the parent-child relationship with their now-adult child.

During the pendency of her appeal from the divorce judgment, Appellant filed in justice court an action against Appellee for $10,000 in damages supported by a verified petition in which she accused Appellee, in part, of “selling me my Lexus, which I was awarded in our divorce Nov. 29, 2010,” and failing “to pay [for the] car ... after he submitted [the] sale.” In her justice court petition, Appellant sought $10,000 for Ap-pellee’s alleged failure to pay off the car “after he submitted sale,” for her inability to work due to the expiration of the vehicle’s registration and having “no use of vehicle,” for “penalties incurred due to false sale,” and as damages for “repairs needed due to vehicle being parked [for] 9 months.”

Appellee now seeks dismissal of Appellant’s appeal, arguing the appeal is [332]*332moot under the acceptance-of-benefits doctrine because Appellant, while denying the validity of the trial court’s property division in her appeal before this Court, has simultaneously accepted the benefits of the divorce judgment awarding her the Lexus and has sought enforcement of the trial court’s property division in the justice court. The acceptance-of-benefits doctrine provides that a party who has accepted the benefits of a judgment is not permitted to challenge the same judgment on appeal. Texas State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex.2002); Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950) (a party may not treat a judgment as both right and wrong). County of El Paso v. Ortega, 847 S.W.2d 436, 442 n. 10 (Tex.App.-El Paso 1993, no writ); Hanna v. Godwin, 876 S.W.2d 454, 457 n. 6 (Tex.App.-El Paso 1994, no writ); Graham v. Caballero, 243 S.W.2d 286, 288 (Tex.Civ.App.-El Paso 1951, writ ref'd n.r.e.) (“One may not accept and receive[ ] the benefits of a judgment and deny its validity.”). The doctrine commonly arises in divorce cases in which a former spouse accepts certain assets awarded in the judgment and seeks to appeal the remainder of the judgment. See Williams v. LifeCare Hospitals of North Texas, L.P., 207 S.W.3d 828, 830 (Tex.App.-Fort Worth 2006, no pet.); Waite v. Waite, 150 S.W.3d 797, 803 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). An appellee bears the burden of proving that an appellant is estopped from challenging the judgment by appeal under the acceptance-of-benefits doctrine. Williams, 207 S.W.3d at 830. When the doctrine applies, an appeal is rendered moot and it is appropriate to dismiss the appeal. See Harlow Land Co. v. City of Melissa, 314 S.W.3d 713, 716 (Tex.App.-Dallas 2010, no pet.); Bloom v. Bloom, 935 S.W.2d 942, 945 (Tex.App.-San Antonio 1996, no writ); County of El Paso, 847 S.W.2d at 442.

Two narrow exceptions permit an appellant to avoid the acceptance-of-benefits doctrine. Richards v. Richards, 371 S.W.3d 412, 414 (Tex.App.-Houston [1st Dist.] 2012, no pet.); Waite, 150 S.W.3d at 803. The doctrine does not apply when: (1) acceptance of the benefits is because of financial duress or other economic circumstances; or (2) the reversal of the judgment on the grounds appealed cannot possibly affect an appellant’s right to the benefits accepted under the judgment. Texas State Bank, 87 S.W.3d at 544; Williams, 207 S.W.3d at 830. Appellant bears the burden of establishing the applicability of an exception to the doctrine. Tomsu v. Tomsu, 381 S.W.3d 715, 717 (Tex.App.-Beaumont 2012, no pet.); Richards, 371 S.W.3d at 415.

In his motion, Appellee contends that Appellant, by filing suit against him in justice court for $10,000 in damages arising from the Lexus which the trial court awarded to her, has accepted the benefits of the property division by seeking enforcement thereof in justice court while also challenging the validity of the property division on appeal, and is treating the trial court’s divorce decree as “both right and wrong.”

In her response, Appellant contends that her justice court suit against Appellee “did not actually attempt to enforce any provision of the judgment, but essentially sought damages for what was alleged to be a fraudulent attempt to transfer the vehicle to her by claiming [Appellee] had sold [the vehicle] to her and for damage done to the vehicle by Appellee’s failure to properly maintain the vehicle while it was in his possession.” Appellant admits in her supporting affidavit that she filed the justice suit against Appellee “to get money to fix the Lexus and be able to register it and have it inspected.” Appellant has since [333]*333nonsuited the justice court action against Appellee and asserts that she did not seek or accept any benefit under the divorce decree.

Appellant argues that the aeceptance-of-benefits doctrine does not apply under these facts because her filing of the justice suit was due to economic necessity. Appellant asserts that title remains in Ap-pellee’s name and that conveyance to Ap-pellee will not be difficult if the case is remanded to the trial court after appeal.

In support of these contentions, Appellant has provided an affidavit which contains explanations of her financial need to use a vehicle for work as a realtor, an admission that she has both used the Lexus for work and has also borrowed other vehicles from family and friends, and her assertion that she has attempted to avoid accepting the benefits of the trial court’s judgment. Appellant also contends in her affidavit that she could not use the Lexus because the vehicle’s registration and inspection stickers were expired.

The vehicle registration renewal form affixed as an exhibit to Appellant’s affidavit shows the 2011 registration fee for the Lexus was $52.80. The affidavit also included an automobile service invoice bearing Appellant’s name and reflecting that a diagnostic service was performed on the Lexus at a cost of $89.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
402 S.W.3d 329, 2013 WL 2250710, 2013 Tex. App. LEXIS 6297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fmgw-v-dsw-texapp-2013.